From The 1709 Blog:
Kim Kardashian is suing U.K. fast fashion online retailer Missguided and its U.S. subsidiary for trademark infringement and violation of her right of publicity. The case is Kimsaprincess, Inc.; and Kim Kardashian West v. Missguided USA (Finance) Inc., and Missguided Limited, 2:19-cv-01258 (C.D.Cal).
The complaint alleges that the inexpensive and fast fashion retailer is using Kim Kardashian’s likeness on its site and on its Instagram account to sell clothes. The pages on the site referring to the petite celebrity are no longer available, but the complaint shows a page entirely dedicated to the Kardashians, including a page named “crushin’on kim k,” featuring several photographs of Kim Kardashian, and another page named “5 party looks inspired by the kardashians” featuring Plaintiffs and several of her sisters.
The complaint states that Kim Kardashian commands a fee of several hundred thousand dollars for a social media post, while “longer-term endorsement arrangements regularly garner fees in the millions of dollars.” 120 million people follow her on Instagram, and a little less than 60 million do so on Twitter. The celebrity owns also several trademarks protecting cosmetic and fragrance products.
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The complaint claims that Missguided has breached California’s right of publicity law, Cal. Civ. Code § 3344 and California’s common law right of publicity when it “willfully and without authorization used Kardashian’s name, image, likeness, and persona for commercial purposes, to advertise the Missguided brand and website, and to promote the sale of clothing on Missguided’s site.”
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The California statutory law protects use of a person’s name, voice, signature, photograph and likeness for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without this person’s prior consent.
Link to the rest at The 1709 Blog
PG notes that Ms. Kardashian filed suit in California against a UK company.
How does a California court have power over a company that is headquartered overseas?
In civil litigation, a court in one state can assert personal jurisdiction over a defendant who resides in another state if the out-of-state defendant has sufficient minimum contacts with the state in which the court is located (the forum state). A court in California can assert personal jurisdiction over a defendant who lives in New York, so long as the defendant’s contacts with California make it fair for the California court to force him to appear in court.
From Wikipedia:
[I]f a Florida orange grower were to breach a promise to deliver a bushel of oranges to a buyer in Alabama, the breach of that agreement would be sufficient for Alabama courts to assert specific jurisdiction, even if the Florida grower had no other contacts with Alabama, and had never even set foot there. The lone contact of a promise to deliver something to a state is enough to give the state jurisdiction over disputes arising from the breach of that promise.
. . . .
Merely placing products in the “stream of commerce” is insufficient to provide minimum contacts with the states where the products end up. The defendant must make an effort to market in the forum state or otherwise purposefully avail himself of the resources of that state. However, since only four of the nine Supreme Court Justices joined the opinion that required a defendant to do more than place his products in a “stream of commerce,” some lower courts still rule that doing so is adequate for a court to exercise personal jurisdiction.
. . . .
Courts have struggled with the Internet as a source of minimum contacts. Although not determinately established by the Supreme Court, many courts use the Zippo test, which examines the kind of use to which a defendant’s website is being put. Under this test, websites are divided into three categories:
- passive websites, which merely provide information, will almost never provide sufficient contacts for jurisdiction. Such a website will only provide a basis for jurisdiction if the website itself constitutes an intentional tort such as slander or defamation, and if it is directed at the jurisdiction in question;
- interactive websites, which permit the exchange of information between website owner and visitors, may be enough for jurisdiction, depending on the website’s level of interactivity and commerciality, and the number of contacts which the website owner has developed with the forum due to the presence of the website;
- commercial websites which clearly do a substantial volume of business over the Internet, and through which customers in any location can immediately engage in business with the website owner, definitely provide a basis for jurisdiction.
Link to the rest at Wikipedia
Suffice to say, jurisdiction over non-resident persons or corporations is not a crystal-clear question in some cases. PG hasn’t read the Complaint filed on behalf of Ms. Kardashian, but suspects Missguided and/or its US subsidiary may have advertised and/or sold its products in California.
PG: I’d be interested in your thoughts on how enforceable any judgement is in such a case. Are there treaties requiring a foreign (in this case UK) court to enforce a USA court’s ruling? I know that UK libel awards are not enforceable in some US states. Would a treaty not still require that the jurisdiction of the foreign court first be recognised before it’s judgement is accepted?
Also, I understand that the German Courts have asserted jurisdiction over Project Gutenberg but don’t see how any damages could be collected (if awarded) as the project does not have any presence in the EU (or much if any money). For that matter does a USA only website really need to worry about GDPR or VAT offences if it has no assets in the EU?